General Terms and Conditions

of AMBER AI & Data Science Solutions GmbH for Hardware, Support and Licences for Application Software

1. Parties, scope

These General Terms and Conditions for Hardware, Support and Licences for Application Software (hereinafter “GTC”) apply to the sale of hardware and the procurement of support services and of licences for application software by AMBER AI & Data Science Solutions GmbH, Grünwalder Weg 32, 82041 Oberhaching, Germany (hereinafter "AMBER") to the Customer.
AMBER and the Customer are also referred to individually as the “Party” and collectively as the “Parties”.
The Customer is an entrepreneur within the meaning of sec. 14 of the German Civil Code (BGB) or a legal entity under public law or a special fund under public law.
AMBER does not sell hardware to consumers and does not procure support services and licences for application software to consumers. These GTC do not apply to consumers within the meaning of sec. 13 of the German Civil Code (BGB).

These GTC together with the offer of AMBER (if any), the order of the Customer and the order confirmation of AMBER reflect the entire contractual relationship between the Parties with regard to the subject matter of the contract (hereinafter “Contract”). There are no verbal ancillary agreements. Any terms and conditions of purchase or general terms and conditions of the Customer that deviate from or conflict with these GTC shall not apply; this shall also apply if AMBER does not expressly object to the terms and conditions of the Customer.

2. Offer, conclusion of the Contract

Offers of AMBER are non-binding, unless AMBER has declared in the offer itself to be bound by it.
The Contract comes into existence with the order confirmation of AMBER in text form towards the Customer or with the beginning of the contractual performance by AMBER on the order of the Customer.

3. Subject matter of the Contract, scope of services, obligation of the Customer to back up data

Subject matter of the Contract is the sale of hardware of AMBER to the Customer and/or the procurement of support services and/or of licences for application software by AMBER to the Customer.
The hardware that is the subject matter of the Contract (hereinafter referred to as “Hardware”) is specified in the offer of AMBER (if any), the order of the Customer and/or the order confirmation of AMBER. The term "Hardware" also includes the system software contained in the Hardware and the operating instructions or the user manual for the Hardware.
The contractual support services for Hardware (hereinafter referred to as “Support”) and/or the contractual licences for application software for Hardware (hereinafter referred to as “Application Software”) are specified in the offer of AMBER (if any), the order of the Customer and/or the order confirmation of AMBER. The term “Application Software” also includes the user documentation of the Application Software contained in the Application Software or provided separately.
The specification and functional description of the Hardware results from the hardware specification, which is either attached to the offer of AMBER (if any) and/or the order confirmation or to which reference is made in the offer and/or the order confirmation, or which can be retrieved from the website of AMBER under https://amber.eu/produkte/.
Together with the Hardware, the Customer shall be provided with the operating instructions or the user manual for the Hardware as provided by the manufacturer within the scope of delivery of the Hardware. This concerns in particular the content, the extent, the language (e.g. only in English) and the type of provision (e.g. only as a PDF) of the operating instructions or the user manual, respectively, for the Hardware.
The Support is provided directly by the manufacturer of the Hardware to the Customer. The scope of performance of the Support results from the support description or the support contract of the manufacturer of the Hardware for which the Support is provided, which are either attached to the offer of AMBER (if any) and/or the order confirmation or to which reference is made in the offer and/or the order confirmation.
The licences for Application Software are provided to the Customer directly by the manufacturer of the Hardware for which the Application Software is intended or by the licensor of the Application Software. The scope of performance of the Application Software results from the description of the Application Software or the licence agreement or EULA of the manufacturer or licensor, respectively, which are either attached to the offer of AMBER (if any) and/or the order confirmation or to which reference is made in the offer and/or the order confirmation.
Set-up, installation and establishment of the operational readiness of the Hardware, training and services are no subject matter of this Contract and are not owed by AMBER under the Contract. The Parties may enter into a separate contract with separate remuneration for such services.
The Customer is obliged to regularly and properly back up the programmes and data stored on the Hardware (back-up), including checking the proper results of the data back-up.

4. Place of performance, delivery and transfer of risk of the Hardware, force majeure

The place of performance is the place of business of AMBER.
The delivery of the Hardware shall take place free domicile to the domestic delivery address stated in the offer of AMBER (if any), the order of the Customer and/or the order confirmation of AMBER.
Insofar as the Contract comprises the delivery of several devices, AMBER is entitled to the partial delivery of individual devices. The additional costs arising from the partial delivery (packaging, freight) shall be borne by AMBER.
With the handover of the Hardware to the carrier determined by AMBER or its sub-supplier, the risk of accidental loss or deterioration of the Hardware shall pass to the Customer. AMBER shall, at the express request of the Customer, which must be made in text form vis-à-vis AMBER at the latest two weeks before delivery of the Hardware, take out a corresponding freight insurance at the expense of the Customer.
Any delivery date or delivery time possibly given by AMBER is non-binding, unless it has been designated as binding in the offer of AMBER (if any) or the order confirmation of AMBER.
If AMBER is prevented from the fulfilment of its performance obligations due to force majeure (e.g. armed conflict, pandemic, strike or lockout), despite the application of reasonable care, the delivery time shall be extended to a reasonable extent. If the performance becomes impossible for AMBER due to force majeure, AMBER shall be released from its performance obligations.

5. Rights of use to system software, obligations of the Customer with regard to system software

Insofar as the Hardware contains system software (e.g. operating system) on which the Customer does not enter into a separate licence agreement or EULA with the manufacturer of the Hardware, AMBER grants the Customer a non-exclusive, unlimited in time, worldwide, non-transferable and non-sublicensable right of use to the system software to use the system software solely for the intended use for the purpose of operating the Hardware. Clause 5.5 remains unaffected.
AMBER shall make the system software available to the Customer solely as “embedded software” in the Hardware. The right of use according to clause 5.1 is linked to the GPU (Graphics Processing Unit) of the Hardware in which the system software is contained as “embedded software”. The Customer may neither remove nor change or circumvent this GPU linking of the system software. In particular, the Customer is prohibited from installing the system software on devices other than the Hardware or using it with a GPU other than the GPU contained in the Hardware.
All rights to the source code of the system software vest exclusively in the manufacturer of the Hardware or the licensor of the system software, respectively. The Customer has no right to access the source code or for provision of the source code of the system software. Sec. 69e German Copyright Act (UrhG) remains unaffected.
The Customer must not, in whole or in part, modify, adapt, translate, reproduce, distribute, sublicense, rent, lease, send, or communicate the system software to the public by wire or wireless means, including the making available to the public in such a way that members of the public may access the system software from a place and at a time individually chosen by them, or decompile, disassemble or reverse engineer the system software, unless the Customer is authorised to do so under pertinent mandatory copyright law. Clause 5.5 remains unaffected.
The Customer is entitled to sell the Hardware to a third party (“third acquirer“). Upon handover of the hardware to the third acquirer, the Customer's rights of use to the copy of the system software contained in the Hardware as “embedded software” shall be transferred to the third party acquirer of the Hardware. Upon handover of the Hardware to the third acquirer, the Customer shall no longer be entitled to any rights of use to this system software.
The Customer is prohibited from removing, obscuring or altering copyright notices on or in connection with the system software.
The Customer must install patches, updates and upgrades as well as newly provided versions of the system software immediately by its own in order to keep the system software up to date, to correct any errors in the system software and to close any security gaps.

6. Application Software

Insofar as the Customer acquires licences for Application Software for Hardware via AMBER, AMBER merely procures the acquisition of the licences between the Customer and the manufacturer of the Hardware or the licensor of the Application Software, respectively, in accordance with these GTC, but does not grant licences to the Application Software to the Customer by itself. Rather, the Customer shall enter into a separate licence agreement (usually referred to as “End User Licence Agreement” – “EULA”) with the manufacturer of the Hardware for which the Application Software is intended or with the licensor of the Application Software in order to use the Application Software. The licence scope and the licence term, the particular applicable EULA for the respective Application Software and the licence fees accruing for this in addition to the purchase price of the Hardware are stated in the offer of AMBER (if any) and/or the order confirmation of AMBER. This EULA shall apply directly between the manufacturer or licensor, respectively, and the Customer. Accordingly, clause 5 of these GTC shall not apply to Application Software.
The licence is granted and the Application Software is made available directly by the manufacturer or licensor, respectively, to the Customer. For this purpose, the manufacturer or licensor, respectively, shall issue a licence certificate, an Entitlement Certificate or similar to the Customer.

7. Support

Insofar as the Customer acquires Support for Hardware via AMBER, AMBER merely procures the support contract between the Customer and the manufacturer of the Hardware in accordance with these GTC, but does not provide the Support to the Customer by itself. Rather, in order to make use of the Support the Customer shall enter into a separate support contract with the manufacturer of the Hardware for which the Support is provided. The scope and the duration of the Support, the applicable support conditions of the manufacturer for the respective Hardware and the support fees accruing for this in addition to the purchase price of the Hardware are stated in the offer of AMBER (if any) and/or the order confirmation of AMBER. These support conditions shall apply directly between the manufacturer of the Hardware and the Customer.
Support shall be provided directly from the manufacturer to the Customer. For this purpose, the manufacturer shall issue a licence certificate, an Entitlement Certificate or similar to the Customer.

8. Subcontractors

AMBER is entitled to engage subcontractors or sub-suppliers for the performance of the contractual services without the Customer’s consent being required.

9. Purchase price, licence and support fees, payment terms

The Customer has to pay to AMBER for the Hardware the purchase price which is stated in the offer of AMBER (if any), the order of the Customer and/or the order confirmation of AMBER.
The Customer has to pay to AMBER for the licences for the Application Software the licence fees which are stated in the offer of AMBER (if any), the order of the Customer and/or the order confirmation of AMBER.
The Customer has to pay to AMBER for the Support for the Hardware the support fees which are stated in the offer of AMBER (if any), the order of the Customer and/or the order confirmation of AMBER.
All prices are stated in Euro and are subject to VAT at the applicable statutory rate.
All invoices are due for payment 14 days after the invoice date.

10. Retention of title

The delivered Hardware remains the property of AMBER (“reserved goods”) until the purchase price has been paid in full.
The Customer must treat the reserved goods with due care. The Customer must sufficiently insure them at his own expense against fire, water and theft at replacement value.
In the case of seizures of the reserved goods by third parties or in the case of other interventions by third parties, the Customer must refer to the ownership of AMBER and must inform AMBER immediately in text form, so that AMBER can enforce its ownership rights.

11. Prohibition of set-off, right of retention

The Customer may only make a set-off against claims of AMBER if its counterclaim is undisputed or has become final and conclusive.
The Customer may only assert a right of retention if its counterclaim is based on the same contractual relationship.

12. Warranty, no guarantee

AMBER warrants that the Hardware will substantially conform to the specification and functional description as stated in the hardware specification.
AMBER does not warrant that the Hardware meets the requirements of the Customer, or for technical details of the Hardware or the suitability of the Hardware for a particular purpose, unless such requirements of the Customer, technical details or a particular purpose have been expressly agreed between the Parties.
The warranty is excluded if the Customer has modified the Hardware itself or through third parties without the prior consent of AMBER in text form, unless the Customer proves that the defect already existed at the time of the handover of the Hardware to the Customer.
The Customer is subject to the obligation to inspect and give notice of defects pursuant to sec. 377 of the German Commercial Code (HGB).
In the event of a warranty case, AMBER shall remedy the defect either by rectifying the defect or by delivering a good which is free of defect (“subsequent performance”). Defects of the system software can also be remedied by way of remote maintenance and the installation of patches, updates or upgrades. In the case of a defect of title of the system software, AMBER can also remedy it at its own choice by AMBER acquiring a right of use to the system software that is sufficient for the purposes of this Contract or by replacing the system software that infringes intellectual property rights with another version or another system software whose use in accordance with the Contract does not infringe any intellectual property rights of third parties.
AMBER is entitled to two attempts of subsequent performance. If AMBER does not succeed in remedying a defect of the Hardware within a reasonable period of time, the Customer shall be entitled to a reduction of the purchase price (“reduction”) or, insofar as the defect is significant, to the withdrawal from the Contract concerning the defective Hardware.
With the exception of claims for damages or for reimbursement of futile expenses under warranty, the warranty period shall be twelve (12) months, commencing with the delivery of the Hardware.
Insofar as the Customer is entitled to claim damages or reimbursement of futile expenses under warranty, this claim shall become statute-barred 24 months after delivery of the Hardware and shall be subject to the limitation of liability of clause 13 below.
The specifications or functional descriptions set out in the hardware specification, on the website or other documentation of AMBER do not constitute guarantees or warranted characteristics unless they are expressly designated as such.

13. Liability

AMBER shall not be liable for any damage, delays or impediments to performance which lie outside AMBER’s sphere of responsibility.
AMBER shall not be liable for any damage resulting from unsuitable, improper, unintended, abusive or unlawful use of the Hardware.
Irrespective of the legal grounds, AMBER shall only be liable for damages caused intentionally or by gross negligence, or in the case of damage culpably caused by AMBER resulting from injury to life, body or health, or in the case of non-fulfilment of a guarantee, or if a defect of the Hardware was fraudulently concealed by AMBER.
AMBER shall also be liable in the event of culpable breach of a material contractual main obligation or cardinal obligation attributable to simple negligence. In this case, the liability of AMBER is limited to the typically foreseeable damage. A “cardinal obligation” within the meaning of this provision is an obligation on the part of AMBER, the fulfilment of which makes the proper performance of the contractual relationship between the Parties possible in the first place, the breach of which jeopardises the achievement of the purpose of the Contract and the observance of which the Customer regularly relies on.
In the case of loss of data due to defects of the Hardware, AMBER shall only be liable for that expenditure which is necessary for the restoration of the data in the case of regular proper data backup by the Customer. If the Customer has not fulfilled its obligation to back up data in accordance with clause 3.9, the liability of AMBER (except in the case of intent) for the loss of data is excluded due to contributory negligence of the Customer covering AMBER’s liability.
Any further liability on the part of AMBER is excluded. Liability under the German Product Liability Act remains unaffected.

14. Data protection

AMBER will comply with the relevant provisions of data protection law and in particular process personal data of the Customer only for the performance of this Contract.
In addition, the privacy policy of AMBER applies, which can be accessed and retrieved from the website of AMBER at https://amber.eu/privacy-policy/.

15. Export control law

The Hardware may be subject to regulations under US, German and/or EU export control law and foreign trade law, such as (re)export restrictions and embargoes. The Customer is obliged to observe these regulations.

16. Final provisions

Amendments or additions to these GTC must be made in text form. This also applies with regard to the cancellation of this form requirement and the cancellation of the entire contractual relationship between the Parties.
These GTC, the contractual relationship between the Parties and all disputes arising out of or in connection with it shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.
The exclusive place of jurisdiction for all disputes arising out or in connection with these GTC or the contractual relationship between the Parties shall be Munich.
Should any or some provisions of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.

As of: April 2023